Custody FAQ

How is child custody determined?

There are a couple ways in which custody may be determined. First, if you and your spouse are able to effectively communicate with one another, you could create a custody and visitation arrangement, in writing, and present it to the court to render a judgment so that it may be enforceable. If you and your spouse are not able to come to an agreement outside of court, the court will determine the custody and visitation arrangement. The court will make this determination based off the best interest of the child. In Louisiana, the court will look at several factors to determine what is in the best interest of the child. These factors include:

The love, affection, and other emotional ties between each party and the child;
The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child;
The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
The permanence, as a family unit, of the existing or proposed custodial home or homes;
The moral fitness of each party, insofar as it affects the welfare of the child;
The mental and physical health of each party;
The home, school, and community history of the child;
The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
The distance between the respective residences of the parties; and
The responsibility for the care and rearing of the child previously exercised by each party.

The court will aim to award joint custody to the parents. If it can be demonstrated that custody granted solely to one of the parents will best serve the interest of the child, the court will award custody to that parent.

How does child custody work in Louisiana?

In Louisiana, there are a few different kinds of custody. First, it is important to understand that there is a difference between legal custody and physical custody. Legal custody concerns the parent making fundamental and important decision regarding the child. As the term suggests, physical custody is the actual physical possession of the child.

Next, it is important to look at the time frame of the custody. This is because there is temporary custody, emergency custody, and permanent custody. Generally, temporary custody means that the parent has legal custody of the child until the court makes a further ruling. In the instance of temporary custody, the child will live with the parent who has temporary custody. It is not determinative, but one benefit of having temporary custody is that consistency granting you permanent custody would provide.

Emergency custody is also referred to as ex parte custody. When a child is in “immediate danger of irreparable harm”, an ex parte motion may be filed on your behalf. By doing this, you are essentially indicating to the court that the current situation your child is in with your spouse is harmful to the child, and you are asking that the court allow you to intervene. Examples of when you may file an ex parte motion may include:

Your spouse is using drugs using drugs or alcohol in the presence of your child;
Your child is spending time around a convicted felon;
Your spouse is keeping your child home from school excessively;
Your spouse is abusing your child.

An ex parte motion should be taken very seriously and should not be abused with frivolous claims in an attempt to get custody of your child. You should consult with your attorney and discuss whether or not you have the basis for an ex parte motion. Any ex parte order granted will expire after thirty days, but can be extended one time before its expiration for fifteen days so long as good cause is shown.

As the name suggests, permanent custody is the continued legal and physical possession of the child after the custody proceedings have concluded.

After you know how long your custody would last, it is important to understand the specific type of custody that you have. You can have sole custody, joint custody, shared custody, or sometimes split custody.

Sole custody is a form of legal custody. With sole custody, one parent has exclusive custody of the child. That parent does not need to communicate with or ask permission of the other parent before making decisions concerning the child. Sole custody allows for the greatest exercise of parental control.

Joint Custody is a form of legal custody. With joint custody each of the parents are assured continuing contact with the child. The court order should include the time periods during which each parent has custody of the child. The court favors joint custody since it allows the child to have a continuing relationship with each parent. When joint custody is ordered, the court will appoint a domiciliary parent. The child will live with the domiciliary parent. The domiciliary parent has the authority to make all major decisions regarding the child (including medical and educational decisions). The non-domiciliary parent may ask the court to allow them to review all decisions. If neither parent is designated as the domiciliary parent, both parents will have equal decision making power concerning the child. Joint custody also obligates the parents to exchange information regarding the child’s health, education, and welfare.

Shared custody is an arrangement in which the parents have joint legal custody of the child and share physical custody for an approximately equal amount of time. Child support will be calculated different with a shared custody arrangement.

Split custody occurs in situations where there is more than one child. Split custody means that each parent is the sole custodial or domiciliary parent of at least one child. The court does not encourage split custody since it divides siblings between households, but will in some situations authorize the arrangement. Child support will be calculated differently with a shared custody arrangement.

As previously mention, the court will determine which type of custody to order based off the best interest of the child.

What is sole custody?

What is joint custody?

What is shared custody?

What is split custody?

What is in the best interest of the child?

In determining child custody, the court must determine what is in the best interest of the child. This is the most important question arising out of divorce proceedings. In Louisiana, there are multiple factors at which the court will look at to determine which living situation is in the best interest of the child. These factors include, but are not limited to:

The love, affection, and other emotional ties between each party and the child;
The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child;
The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
The permanence, as a family unit, of the existing or proposed custodial home or homes;
The moral fitness of each party, insofar as it affects the welfare of the child;
The mental and physical health of each party;
The home, school, and community history of the child;
The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
The distance between the respective residences of the parties; and
The responsibility for the care and rearing of the child previously exercised by each party.

There is no mathematical equation that the courts use to determine the weight given to each factor, or exactly which factors will be used for each case. Each situation is handled differently, as the court sees fit to better serve the child.

Other factors that the court may consider include:

The gender of the child and the parent
The age of the child and the parent
The “significant” others involved in the parent’s life
The criminal record of the parent
The race of the child and parent
The religion of the parent
The financial resources and work schedules of the parent
Any history of physical, sexual, drug, or alcohol abuse of the parents

It is important to remember that this list is not exhaustive. These factors are merely guidelines for the court when determining custody. Since each child and situation is different, courts may look at factors not represented in this list. A qualified Louisiana Family Law Attorney can help you to figure out how these factors and other may be applied to your specific case, and how it will affect your chances of being awarded child custody.

Do I have to pay child support if I have joint custody?

Yes. Both parents have an obligation to child support. If you have joint custody, the court will consider the time the child spends with each parent. This will be the basis for the adjustment of each parent’s support obligation. If the parents have joint custody, and the child spends more than seventy-three days with one parent, that parent may be eligible for a credit to their child support obligation. The court determines exactly what constitutes a day, but it will not be less than four hours. Child Support Worksheet A is used in circumstances of joint custody and is included below:

Obligation Worksheet A
(The worksheet for calculation of the total support obligation under R.S. 9:315.8 and 315:10)
Court ___________	Parish ___________, Louisiana
Case Number __________	Div/CtRm ___________
______________________	______________________
Petitioner	Respondent
Children & Dates of Birth	Children & Dates of Birth
______________________	______________________
______________________	______________________
______________________	______________________

	A. Petitioner	B. Respondent	C. Combined
1. MONTHLY GROSS INCOME (R.S. 9:315.2(A))


2. MONTHLY ADJUSTED GROSS INCOME (Line 1 minus 1a and 1b).	$_________	$_________	$_______
3. COMBINED MONTHLY ADJUSTED GROSS INCOME (Line 2 Column A plus Line 2 Column B). (R.S. 9:315.2(C))
4. PERCENTAGE SHARE OF INCOME (Line 2 divided by line 3). (R.S. 9:315.2(C))	%_________	%_________
5. BASIC CHILD SUPPORT OBLIGATION (Compare line 3 to Child Support Schedule). (R.S. 9:315.2(D))			$_______
a. Child Care Costs . (R.S. 9:315.3)
b. Child’s Health Insurance Premium Cost. (R.S. 9:315.4)
c. Extraordinary Medical Expenses (Uninsured Only). (Agreed to by parties or by order of the court). (R.S. 9:315.5)
d. Extraordinary Expenses (Agreed to by parties or by order of the court). (R.S. 9:315.6)
e. Optional. Minus extraordinary adjustments (Child’s income if applicable). (R.S. 9:315.7)
6. TOTAL CHILD SUPPORT OBLIGATION (Add lines 5, 5a, 5b, 5c, and 5d; Subtract line 5e).(R.S. 9:315.8)			$_______
7. EACH PARTY’S CHILD SUPPORT OBLIGATION (Multiply line 4 times line 6 for each parent).	$_________	$_________
8. DIRECT PAYMENTS made by the noncustodial parent on behalf of the child for child care costs, health insurance premiums, extraordinary medical expenses, or extraordinary expenses.
9. RECOMMENDED CHILD SUPPORT ORDER (Subtract line 8 from line 7).		$_________

Comments, calculations, or rebuttals to schedule or adjustments if made under 8 above or if ordering a credit for a joint custodial arrangement:
Prepared by: ___________________		Date: ______________

Do I have to pay child support with shared custody?

Shared custody means joint custody where each parent has physical custody of the child for an approximately equal amount of time. In the situation where the parents have shared custody, the basic child support obligation will need to be multiplied by one and one-half. After doing so, the amount will then need to be divided between the parents in proportion to their respective adjusted gross monthly incomes. Each parent’s obligation will then be cross multiplied by the actual percentage of time that the child spends with the other party. The parent owing the greater amount of child support will be required to pay the other parent the difference between the two amounts of child support obligations. Child Support Worksheet B is used in circumstances of shared custody and is included below:

Obligation Worksheet B
(The worksheet for calculation of the total child support obligation under R.S. 9:315.9)
Court ______________________	Parish _____________, Louisiana
Case Number ___________	Div/CtRm _________________
______________________	______________________
Petitioner	Respondent
Children & Dates of Birth Children & Dates of Birth
______________________	______________________
______________________	______________________
______________________

	A. Petitioner	B. Respondent	C. Combined
1. MONTHLY GROSS INCOME (R.S. 9:315.2(A))
a. Preexisting child support payment
b. Preexisting spousal support payment.
2. MONTHLY ADJUSTED GROSS INCOME (Line 1 minus 1a and 1b).	$________	$________
3. COMBINED MONTHLY ADJUSTED GROSS INCOME (Line 2 Column A plus Line 2 Column B) (R.S. 9:315.2(C))			$________
4. PERCENTAGE SHARE OF INCOME (Line 2 divided by line 3) (R.S. 9:315.2(C))	%________	%________
5. BASIC CHILD SUPPORT OBLIGATION (Compare line 3 to Child Support Schedule) (R.S. 9:315.2(D))			$________
6. SHARED CUSTODY BASIC OBLIGATION (Line 5 times 1.5) (R.S. 9:315.9(A)(2))			$________
7. EACH PARTY’S THEORETICAL CHILD SUPPORT OBLIGATION (Multiply line 4 times line 6 for each party)(R.S. 9:315.9(A)(2))	$________	$________
8. PERCENTAGE with each party (Use actual percentage of time spent with each party, if percentage is not 50%) (R.S. 9:315.9(A)(3))	%________	%________
9. BASIC CHILD SUPPORT OBLIGATION FOR TIME WITH OTHER PARTY (Cross Multiply line 7 for each party times line 8 for the other party) (R.S. 9:315.9(A) (3)) (For Line 9 Column A, multiply Line 7 Column A times Line 8 Column B) (For Line 9 Column B, multiply Line 7 Column B times Line 8 Column A)	$________	$________
a. Child Care Costs
b. Child’s Health I nsurance Premium Cost (R.S. 9:315.4)
c. Extraordinary Medical Expenses (Uninsured only) (Agreed to by parties or by order of court (R.S. 9:315.5)
d. Extraordinary Expenses (Agreed to by parties or by order of the court) (R.S. 9:315.6)
e. Optional: Minus extraordinary adjustments (Child’s income if applicable) (R.S. 9:315.7)
10. TOTAL EXPENSES/EXTRAORDINARY ADJUSTMENTS (Add lines 9a, 9b, 9c, and 9d; Subtract line 9e)			$________
11. EACH PARTY’S PROPORTIONATE SHARE of Expenses/Extraordinary Adjustments (Line 4 times line 10) (R.S. 9:315.9(A)(4))	$________	$________
12. DIRECT PAYMENTS made by either party on behalf of the child for child care costs, health insurance premiums, extraordinary medical expenses, or extraordinary expenses. Deduct each party’s proportionate share of an expense owed directly to a third party. If either parent’s proportionate share of an expense is owed to the other parent, enter zero. (R.S. 9:315.9(A)(5))	–	–
13. EACH PARTY’S CHILD SUPPORT OBLIGATION (Line 9 plus line 11 and minus line 12) (R.S. 9:315.9(A)(4) and (5))	$________	$________
14. RECOMMENDED CHILD SUPPORT ORDER (Subtract lesser amount from greater amount in line 13 and place the difference in the appropriate column) (R.S. 9:315.9(A)(6))	$________	$________

Comments, calculations, or rebuttals to schedule or adjustments:
Prepared by: ___________		Date: ________________

Do I have to pay child support if I have sole custody?

If you have sole custody, you will not be required to pay child support because you are the one already supporting the child.

Do I have to pay child support with split custody?

Split custody means that each party is the sole custodial or domiciliary parent of at least one child to whom support is due. In the case of split custody, each parent will owe the total child support obligation for the other child. The parent that owes the greater amount will owe the difference in amounts to the other parent and this will serve as fulfilment of the child support obligation. Child Support Worksheet A is used in circumstances of split custody and is included below:

Obligation Worksheet A
(The worksheet for calculation of the total support obligation under R.S. 9:315.8 and 315:10)
Court ___________	Parish ___________, Louisiana
Case Number __________	Div/CtRm ___________
______________________	______________________
Petitioner	Respondent
Children & Dates of Birth	Children & Dates of Birth
______________________	______________________
______________________	______________________
______________________	______________________

	A. Petitioner	B. Respondent	C. Combined
1. MONTHLY GROSS INCOME (R.S. 9:315.2(A))


2. MONTHLY ADJUSTED GROSS INCOME (Line 1 minus 1a and 1b).	$_________	$_________	$_______
3. COMBINED MONTHLY ADJUSTED GROSS INCOME (Line 2 Column A plus Line 2 Column B). (R.S. 9:315.2(C))
4. PERCENTAGE SHARE OF INCOME (Line 2 divided by line 3). (R.S. 9:315.2(C))	%_________	%_________
5. BASIC CHILD SUPPORT OBLIGATION (Compare line 3 to Child Support Schedule). (R.S. 9:315.2(D))			$_______
a. Child Care Costs . (R.S. 9:315.3)
b. Child’s Health Insurance Premium Cost. (R.S. 9:315.4)
c. Extraordinary Medical Expenses (Uninsured Only). (Agreed to by parties or by order of the court). (R.S. 9:315.5)
d. Extraordinary Expenses (Agreed to by parties or by order of the court). (R.S. 9:315.6)
e. Optional. Minus extraordinary adjustments (Child’s income if applicable). (R.S. 9:315.7)
6. TOTAL CHILD SUPPORT OBLIGATION (Add lines 5, 5a, 5b, 5c, and 5d; Subtract line 5e).(R.S. 9:315.8)			$_______
7. EACH PARTY’S CHILD SUPPORT OBLIGATION (Multiply line 4 times line 6 for each parent).	$_________	$_________
8. DIRECT PAYMENTS made by the noncustodial parent on behalf of the child for child care costs, health insurance premiums, extraordinary medical expenses, or extraordinary expenses.
9. RECOMMENDED CHILD SUPPORT ORDER (Subtract line 8 from line 7).		$_________

Comments, calculations, or rebuttals to schedule or adjustments if made under 8 above or if ordering a credit for a joint custodial arrangement:
Prepared by: ___________________		Date: ______________

Does my child get to decide who to live with?

There are many factors that the court will considering in its determination of custody. Your child’s preference may or may not be a factor that holds much weight. The age of your child plays a role in how much weight the court affords your child’s preference. The older your child is, the greater ability he has to express not only his wants, but his reasoning behinds those wants. The reasoning behind your child’s preference is just as important as the preference itself. Take for instance a child who wants to live with you because you help with homework and cook dinner every night before tucking him into bed with a bedtime story. Compare that child with the child who wants to live with you because you let him watch television and stay up until eight o’clock. Clearly, the reasoning behind the first child’s preference will have greater weight with the court since it illustrates the strong parent-child relationship.

There is no set age at which a child may indicate his preference to the court. If either parent wishes the child’s voice to be heard directly, they may request that the court hear him. If the court does not want to put a child through the possibly difficult situation of advocating for one parent over the other, sending your child to counseling may be beneficial since the counselor may then present their findings to the court.

Does dating have an impact on child custody?

Dating during custody proceedings may or may not be relevant to the determination of custody. If the child is aware of and exposed to your dating, the court looks down upon that since your child is still adjusting to the changes already happening with your family. Consult with your attorney but it may be best for you chances of custody, and for your child, to focus on your child and their adjustment needs.

If my spouse stops paying child support can I prevent visitation?

No. It is not smart to prevent visitation granted from a court judgment, even if your spouse is failing to pay child support (two wrongs don’t make a right!). While failure to pay child support is a violation of a court order (along with other charges), all preventing visitation would do is put you in violation of the order as well. If child support payments have been missed, arrearages will likely need to be paid. Essentially arrearages are past due child support. The District Attorney’s Office keeps records of arrearages. Arrearages will collect interest until paid in full.

If child support is not being paid, notify your attorney as well as the Department of Children and Family Services. Part of what the department does is enforce child support orders by garnishing wages, suspending motor vehicle registration, suspending licenses, intercepting tax refunds, or denying passports. The department also helps in locating parents who are not paying their child support obligations. When the Department of Children and Family Services is providing support enforcement services, the department will either institute an action in court to help secure the payments owed.

It is important to let your attorney know since you may be able to initiate a court action for contempt against the parent not paying child support. Their willful disobedience of the judgment for child support constitutes a contempt of court.

If you fail to pay child support, there are criminal penalties. If your child support obligation remains unpaid for longer than six months at an amount greater than $2,500 you are in violation of Louisiana law. For a first offense, you are subject to a $500 fine and up to 6 months in prison. If there is a second or additional offence, you are subject to a $2,500 fine and imprisonment with hard labor for up to two years. Additionally, you will be ordered to pay the owed child support that exists at the time of sentencing. If you have failed to pay support and your spouse has to file court action to secure your payment, you will be responsible for your spouse’s attorney’s fees.

Do grandparents have rights to custody?

Grandparents do have have rights to custody over a parent who is in the best interest of the child. The court will generally aim to place the child in the custody of one or both parents. In a situation where joint or sole custody to either parent is not in the best interest of the child, the court may award custody to another person, such as a grandparent. The person who the child has been living with in a wholesome, stable environment or another person who can provide such environment, may be granted custody from the court.

Do grandparents have rights to visitation?

Legally, grandparents do not have rights to visitation. However, in certain circumstances, a grandparent may be granted reasonable visitation if the court determines that it is in the best interest of the child. A hearing will be held in order for the court to hear evidence as to why the grandparent should or should not be granted visitation.

Under extreme circumstances, another relative, former stepparent or grandparent may be granted reasonable visitation should the court find that it is in the best interest of the child. In order to show that circumstances are extraordinary, there must be evidence of a parent abusing drugs or something of the like. Usually, courts are reluctant to grant visitation or custody to a non-parent, and especially to a non-family member, since it is almost always in the best interest of a child to have a family-like structure. Generally, a grandparent would be the first non-parent party the court would consider for visitation if:

One or both parents have died
One or both parents are incarcerated
One or both parents have a drug and/or alcohol abuse problem
One or both parents are abusive and/or neglectful

Why should I have a written agreement for child custody?

It is best to have a written agreement for child custody because it may be looked at as a form of evidence should there be disputes concerning the agreement in the future. It is also a good idea to file the agreement with the court so that it become a final judgment. To do so, you need a petition for custody and visitation, to which you may attach your agreement (referred to as a joint stipulation), and a stipulated judgment (which is the order for the judge to sign). This helps, because should your spouse violate the agreement later, the agreement is now enforceable under penalty of law.

How do I prepare to meet with a lawyer?

When you decide to meet with an attorney for your divorce, it is important to know what you want. It is a good idea to have a list of questions prepared so that you are able to leave your consultation with a better understanding of your situation. Some of these questions may include other Frequently Asked Questions on this page as well as:

What will the divorce process look like in my case?
Do you think we will go to trial?
What are your fees for cases like mine?
What do I do in the meantime?
How will you accomplish my goals?
Are my goals realistic?
What information/documents can I provide to help you?
How long will this process take?

Depending on the answers you receive from you questions, you will know whether or not you feel comfortable with hiring that attorney to help you with your case. It is important that you feel comfortable with whomever you hire since divorce is a very personal issue.

When meeting with an attorney it is also important to understand that divorces are a process. Regardless of the attorney, a divorce does not happen overnight. Prepare your expectations realistically so that you may focus on the important information that the attorney shares with you.

What happens if I violate a court order for custody?

Violations of an order are taken very seriously by the court. The court’s goal is to protect the best interest of your child through court order. Visitation orders may be violated in several different ways including not picking up or returning your child at the agreed upon time, at the agreed upon location. If you violate a visitation order, consult with your attorney how to proceed. If the violations are frequent and recurring, your spouse may ask the court to modify the visitation to protect the best interest of the child. If you do not return your child and you spouse suspects abuse, they may need to call law enforcement officials to enforce the order.

Depending on the manner in which you violate the order, you may be held liable for contempt of court, simple kidnapping, or interference with a custody order. These violations are punishable with fines and or jail time, or both.

What is virtual visitation?

Since we live in such a technologically advanced time, there is such thing as virtual visitation. Virtual visitation is a way for parents to have interaction with their child through electronic means such as FaceTime or Skype. This allows the parent to see the child, and the child to see the parent “face-to-face”. In the custody realm, virtual visitation for parents who are not the domiciliary parent can be very helpful. While virtual visitation is not a substitute for in-person interaction between a parent and child, it allows a parent who may not always have the opportunity for in-person visitations to speak to their child on a regular basis. The parents may come to an agreement, or the court may order parameters around virtual visitation such as the time of day the call takes place, or how long each call is to last. Virtual visitation is a great supplement for in-person visitation with a child.

What do I tell my child?

In an understandably difficult time for your child, it is recommended that you and your spouse plan when and how you are going to address all the changes happening with your family to your child. Be sure that your child is calm and comforted through out the conversation. Be honest about what is occurring without degrading or being negative toward your spouse. It should be anticipated that your child will have emotions and questions to address at a later time. Continue to communicate with your child about the process so there are no unexpected surprises for them. If you feel it may be helpful, seeking counseling for your child is a common occurrence during divorce and custody proceedings.

What is a hearing officer conference?

Hearing Officer Conferences are used to expedite matters in Family Court. If you are getting a divorce, whether there are minor children of the marriage or not, you will be assigned a Hearing Officer Conference. From the date of filing your pleadings, it generally takes 6-8 weeks to obtain a date for a Hearing Officer Conference depending on the time of year and the volume of the court. Louisiana law permits a Hearing Officer to make a written recommendation to the court concerning domestic and family matter such as custody, visitation, and support. The Hearing Officer will consider many of the same factors that the court will in its determination. Most importantly, the hearing officer is concerned with the best interests of the child if one is involved.

You and your spouse will need to submit certain information to the Hearing Officer and to each other prior to your scheduled Hearing Officer Conference. On the day of your Hearing Officer Conference, you and your attorney be present along with your spouse and their attorney. Depending on which parish you are in, the attorneys may go speak with the Hearing Officer before the spouses join them, or the spouses and attorneys may go in together. In Calcasieu Parish, the attorneys will go in and meet with the Hearing Officer before the spouses join them if need be. The Hearing Officer will take into consideration the information in the pleadings and the information presented at the conference and make a written recommendation. The recommendation may include things such as:

The custody arrangement for the spouses;
The visitation arrangement for the spouses;
Child support arrangement;
Spousal support;
Community property arrangements

The Hearing Officer’s recommendation will be added to the court record.

Then, one of two things can happen; (1) the parties can agree on the recommendation, or (2) the parties can object to the recommendation. If the parties agree on the recommendation, the Hearing Officer’s Recommendation will become final once the judge signs the final order. This means that was was contained in the Hearing Officer’s Recommendation will be the order by which the spouses are to live by. If the parties disagree with what was included in the Hearing Officer’s Recommendation, a written objection may be filed within 5 days of transmission of a copy of the recommendation. If either party files a written objection, the parties will proceed to a Rule Date. In the time between the conference and waiting for a Rule Date, the Hearing Officer’s recommendation will essentially become a temporary order. On the day of the Rule Date, your attorney will go to court on your behalf (you may or may not need to be present). If you and your spouse have come to an agreement concerning your situation, this agreement can be entered into the court and made final on the Rule Date. If you and your spouse have not come to an agreement by the Rule Date, your attorney will request a Hearing. All the while, the Hearing Officer’s recommendation is still in effect. At the hearing, the judge will take into consideration the recommendation from the Hearing Officer and consider all other evidence before making a determination. After making a determination, the court will then issue a final judgment.

Does everyone have a hearing officer conference?

Yes. Anyone who files pleadings in Family Court will be assigned a rule date. If you and your spouse are able to resolve your issues and come to an agreement about your situation prior to the date of the Hearing Officer Conference, this agreement can be entered with the court and become a final judgment without having to attend your Hearing Officer Conference.

Can I object the recommendation the hearing officer makes?

Yes. You have 5 days from the date that the Hearing Officer transmits a copy of their recommendation to you and your spouse to object the recommendation.

What do I do if I am worried my child is being abused by my spouse?

If you are worried that your child is being abused by your spouse, be sure to take steps to protect your child first and foremost. Contact your attorney and let them know the situation. Depending on where you are in the divorce proceedings you may be able to request emergency custody or a protective order. If there is clear evidence that your spouse is abusing your child, filing for an ex parte order is likely in the best interest of your child. This will remove them from the abusive parent, and likely include a protective order against the abusive parent.

If your divorce proceeding is still in the early stages (before a hearing officer conference), express these concerns to your attorney. At the hearing officer conference, should you be given the opportunity to speak, calmly explain why you are concerned your spouse may abuse your child. The hearing officer may order visitation to be supervised, or otherwise construct their order to protect your child from abuse.

This information should also be presented to the court, whether during trial or in a filing.

What do I do if I am worried that my spouse is going to take my child?

If you are concerned that your spouse is going to take your child notify your attorney. You can request temporary custody and/or a temporary restraining order to prevent your spouse for taking your child.

If a court order for custody has already been issued and your spouse takes your child in violation of that order, under Louisiana law, your spouse is guilty of interference with the custody of a child. The law says that intentionally taking a minor child away by a parent who does not have the right to custody with the intent to keep the child from the parent who does have custody will be considered interference with the custody of a child. However, if the parent who took the child can prove that he/she reasonably believed that taking the child was necessary to protect the welfare of the child, the court will consider this as a defense to the charge. If your spouse interferes with the custody of a child, he/she will be fined up to $500 and up to six months in prison.

If you have been awarded custody and your spouse removes your child from the state, your spouse may be guilty of simple kidnapping under Louisiana law. If this is the case, your spouse will be fined up to $5,000 and may be imprisoned with or without hard labor for up to five years.

Consult with your attorney if you think you spouse is going to or has taken your child out of the state or in violation of your custody order.

Who else can seek custody and visitation?

In certain circumstances, a third party may seek custody and/or visitation. It is not common for custody or visitation to be granted to a non-parent. The third party seeking custody and/or visitation would need to prove to the court that they are in the best interest of the child. Generally, the parents or parent (if one is deceased or incarcerated) would need to be abusive to the child, or abusing drugs and alcohol themselves. Usually, courts are reluctant to grant visitation or custody to a non-parent, and especially to a non-family member, since it is almost always in the best interest of a child to have a family-like structure. Generally, a grandparent would be the first non-parent party the court would consider for visitation if:

One or both parents have died
One or both parents are incarcerated
One or both parents have a drug and/or alcohol abuse problem
One or both parents are abusive and/or neglectful

Can child custody be modified?

Yes, custody may be modified n certain circumstances. After you and your spouse have a judgment or decree issued by the court for child custody, an instance may arise in which you or your spouse wish to modify the order. Since changing custody would cause a disruption in the day to day life of the child, courts generally do not modify custody decrees. However, if the court finds that there has been a substantial change in circumstance since the time the prior custody decree was ordered and that a modification would serve the best interest of your child, the court may grant the modification.

Whether it be you or your spouse asking the court to modify the agreement, the party asking for the modification will need to overcome the burden of proof. That is, the moving party will need to prove to the court that there has been a substantial change in circumstance, and that the proposed modification is truly in the best interest of your child.

First, you will need to show the court that there is a substantial change in circumstance. The court will consider the totality of your circumstance in determining whether or not there was a substantial change. The court may look at factors such as the dynamics of both parents’ households, the parents’ employment and schedules, the living situations of the parents, the age of the child, or the child’s academic performance and overall welfare. Generally, the moving party would need to show that the current arrangement is damaging to the child or that the benefits of the change would outweigh any harm of the change in environment. The change needs to be substantial in the courts eyes. This means more than just a new address, or a new paycheck. This means that, all factors combined, there has been enough change that it is clear that the day to day welfare of the child will be affected positively. If the court agrees that there has been a substantial change in circumstance, the court will then determine the best interest of the child in issuing a modification of child custody.

In Louisiana, there is law that serves as a guideline to the courts in determining what is in the best interest of the child. The court will consider all relevant factors. These factors include:

The love, affection, and other emotional ties between each party and the child;
The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child;
The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
The permanence, as a family unit, of the existing or proposed custodial home or homes;
The moral fitness of each party, insofar as it affects the welfare of the child;
The mental and physical health of each party;
The home, school, and community history of the child;
The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
The distance between the respective residences of the parties; and
The responsibility for the care and rearing of the child previously exercised by each party.

As you can see, the list of factors the court will consider is relatively lengthy. This is to ensure that the custody decree the court will issue properly serves the best interest of your child. Some factors will be relied upon more heavily than others, but no one factor alone is determinative.

After determining the best interest of the child, the court will rule either to allow the prior custody decree to stand or to modify the decree. If modification of the custody decree is issued by the court, the modification will serve as the new decree for custody by which you and your spouse must abide.

Do we need to go to court to determine child custody?

No. You and your spouse may be able to come to an agreement on all the matters in your situation without going to court. If you do, it is best to have this agreement in writing, and submit it to the court so that it can become an enforceable judgment.

Can I relocate my child?

It depends. The situation may arise where the domiciliary or custodial parent may decide that they wish to move, taking the minor child with them. Obviously this situation would present challenges to all parties involved. While the domiciliary parent may feel relocating the child is necessary and beneficial, the other parent, or even the court, may not share the same feeling.

In Louisiana, there is a law referred to as The Relocation Statute. This law outlines the process for the relocation of a minor child and applies to all custody or visitation orders unless the order has given specific directions for relocation.

During relocation, the moving parent is attempting to change the child’s principal residence. The principal residence of the child is generally the location chosen by the court to be the primary residence of the child. This generally will be the same address as the domiciliary parent. However, if there is no court order (like in case where the parents are able to agree on custody and visitation arrangements outside of court), the parents may have expressly agreed as to where the child will primarily reside. If there is no court order and no express agreement made by the parents, the child’s principal residence will be where the child has spent the majority of the last six months.

To be considered as relocation, the move must either be out of state, or at least one hundred and fifty miles away from the other parent, and for a time period exceeding sixty days. So if a domiciliary parent moves the minor child seventy-five miles away, for forty days, and then returns, this would not be considered a relocation attempt and the parent could do so freely (so long as the absence did not interfere with the visitation schedule or another court order). In situations where the move would be considered relocation, there are a few steps the moving parent needs to take before doing so.

Generally, the person who is the sole custodian of the child will have the most control in the relocation of a child. Second to that, the parent that is the domiciliary parent may propose relocation. Remember, from the General Custody page, that the domiciliary parent has decision making power in regard to their child. If a domiciliary parent wishes to relocate the child, then they must follow the steps for relocation and obtain authorization from the court.

In cases where the parents have equal physical custody of the child, the parent wishing to move must still follow the steps for relocation, and either obtain court authorization after a hearing if the other parent object, or get written consent from the other parent that the relocation is alright.

In other instances, a person who is sharing equal parental authority, as defined by statute, or a person who is the natural tutor of a child born outside of the marriage may propose relocation as well.

Can I travel with my child?

It depends. Generally, you should be allowed to travel with your child unless your custody judgment explicitly says otherwise.

How will a live in partner affect my custody proceeding?

Having a new significant other live with you during a custody proceeding may affect the court’s custody determination. Consult with your attorney before you have your significant other move in to discuss how it may affect your custody proceeding. If your significant other has already moved in, tell your attorney so that they may assess the potential impact your living arrangement has on your custody proceeding.

Living with a significant other may have a significant impact on your case. The court will look at factors including, but not limited to:

The length of separation between you and your spouse;
The length of your relationship with your significant other;
Your child’s interaction with your significant other.

Since living with a significant other may jeopardize your custody case, it is very important to consult with your attorney, and to act in the best interest of your child.

What is the Uniform Interstate Family Act?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted by Louisiana along with forty-eight other states. The UCCJEA aims to provide continuing jurisdiction to a single state in custody matters. The act says jurisdiction will be proper in the child’s home state. The home state is where the child has been living for the previous six months. If the child is younger than six months old, the home state will be the state listed on the child’s birth certificate. That state will have continuing jurisdiction over all custody matters pertaining to that child until that state’s court, or another court, determines from substantial evidence that the child, nor the parents, have substantial connections with that state.

The goal of the UCCJEA is to not have conflicting orders between different states. This way, all parties involved are on the same page and have the same information. This helps to lessen disputes over custody orders and expedite the custody process.

Which custody is the best custody?

There is no “one size fits all” custody arrangement. Every family and every child has different needs during and after the custody determination process. The best type of custody, is the custody arrangement that best suits your child. The least interruption to your child’s day to day life, the better. You and your child’s other parent should aim to work out a custody arrangement that allows your child to spend plenty of time with both parents.

If I have sole custody, who will my child go to if I die?

If you have sole custody and pass away before your child reaches eighteen (or becomes emancipated) several things may happen.
When you pass away, anyone can file for custody of your child (grandparent, friend, teacher, concerned neighbor, etc.). However, it is important to remember that a fit, biological parent will always be the court’s first choice in custody. If your child’s other parent is fit to raise your child, it is likely that the court will award the other parent with custody. If your child’s other parent is physically abusive, abusing drugs or alcohol, is unstable, or otherwise unfit to have custody of the child, the court will likely consider other options.
These options will be the other people that petition for custody of your child. For example, if your sibling has a close relationship with your child and your child’s other parent is abusive or cannot be located, your sibling can petition the court for custody and the court will have a hearing to determine if it is in the best interest of your child to be left with your sibling.
Additionally, many people chose to have a will that includes a section discussing guardianship of a child. If the child’s other biological parent is fit, and the will names someone other than the other parent, the court will still likely award custody to the fit parent. However, if your child’s other parent is unfit, and your will names a guardian for your child, who then petitions the court for custody, the court will take into account your wishes in the will.
Remember, that in any issue pertaining to custody, the court will always look for what is in the best interest of the child.

What is DCFS?

The Department of Children and Family Services is a government entity in Louisiana. Its goal is to keep children safe, help families and individuals become self-sufficient, and provide safe refuge during disasters. The Department of Children and Family Services assists with child welfare, child support enforcement, reunification, and much more. To learn more, visit the website at http://www.dcfs.la.gov.

How do I get custody back?

Reunification is a process by which a child who was removed from the custody of their parent (or parents), would be reunited and placed back in the custody of their parent(s). A Reunification Plan is created and implemented by the Department of Children and Family Services. Each plan is different depending on the specific situation. For example, if a child was removed from a parent’s custody because of the parent’s drug use, that Reunification Plan may include attending a rehabilitation program, taking periodic drug tests, and supervised visitation with the child. By following and completing the Reunification Plan, the parent will have an easier time showing that court that there has been a substantial change in circumstance, that would better serve the interest of the child, when trying to modify custody in their favor.
Just as the Reunification plan can be helpful in modifying custody, it could also hinder a parent’s ability to obtain custody of their child. If the Department of Children and Family Services implements a Reunification Plan and the parent does not follow it or show some effort in completing it, the court may take that as an indication that nothing has changed, and the parent is not ready for custody of their child.

Can I stop my child’s other parent from moving with my child?

A parent, or anyone with the authority to object, is afforded the opportunity to object to a proposed relocation. A non-parent may only object to relocation if they have been awarded some form of custody of your child. If the non-parent has not been awarded custody but has been awarded visitation, they may initiate a proceeding to get a new visitation schedule, but not an objection to the relocation.
Anyone objecting to the relocation thirty days after receiving your notice to respond to you by certified mail that they are objecting to the relocation. Once you file an objection, the other parent has thirty days to initiate a summary proceeding with the court in order to obtain approval. The court will hold a contradictory hearing and then make its decision on the relocation. A contradictory hearing is simply a time at which the court will hear the reasons as to why the other person is objecting your relocation, and you will have an opportunity to tell the court why the relocation is not in the best interest of your child. This hearing will take place within sixty days after you file your motion to obtain approval from the court.
The court will then make its determination based off the findings at the hearing.

Can a grandparent get visitation?

In certain circumstances, a grandparent may be granted reasonable visitation if the court determines that it is in the best interest of the child. A hearing will be held in order for the court to hear evidence as to why the grandparent should or should not be granted visitation.
Under extreme circumstances, another relative, former stepparent or grandparent may be granted reasonable visitation should the court find that it is in the best interest of the child. In order to show that circumstances are extraordinary, there must be evidence of a parent abusing drugs or something of the like. Usually, courts are reluctant to grant visitation or custody to a non-parent, and especially to a non-family member, since it is almost always in the best interest of a child to have a family-like structure. Generally, a grandparent would be the first non-parent party the court would consider for visitation if:

One or both parents have died
One or both parents are incarcerated
One or both parents have a drug and/or alcohol abuse problem
One or both parents are abusive and/or neglectful

I am remarried and my spouse adopted my child from a previous marriage. If we divorce, will my spouse be able to get custody of my child?

If you remarry and your new spouse adopts your child, your child is now just as much your spouse’s as he/she is yours. Your spouse will now be treated as though they are the natural parent of your child. This means all of the obligations and responsibilities that parents have will now be extended to your spouse, including child custody and child support.
If you and your new spouse choose to get a divorce after your spouse has adopted your child from a previous marriage, your spouse has just as much of a right to custody as you do. This also means that your spouse has just as much of an obligation to child support as you do.
From the court’s perspective, this basically means that a normal custody proceeding will be conducted. The court will still make a determination as to what is in the best interest of your child and order a custody arrangement based off of that determination.